Lawrence Magu & 32 others v Aspen Logistics Limited, Shah & Paatel (Industries Limited) & Jovan Kariuki t/a Moran Auctioneers [2021] KEBPRT 416 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 290  OF 2020  (NAIROBI)

LAWRENCE MAGU & 32 OTHERS............................SUB-TENANT/APPLICANT

VERSUS

ASPEN LOGISTICS LIMITED......................................1ST LANDLORD/TENANT

SHAH & PAATEL (INDUSTRIES LIMITED....2ND LANDLORD/RESPONDENT

JOVAN KARIUKI T/A MORAN AUCTIONEERS....................3RD RESPONDENT

RULING

1.  By a motion dated 17th September 2020, the Landlord/Applicant prays for striking out of its name as a party to these proceedings and for discharge  from any orders issued herein.

2.  The Landlord/Applicant further prays that the Tribunal finds and holds that these proceedings must in any event abide by the ruling in Tribunal case no. 609 of 2019 relating to the same premises and proceed to strike out the entire Reference with costs.

3.  The application is supported by the affidavit of ASHIF LALJI sworn on even date and annextures thereto.

4.  Among the documents annexed to the affidavit is a lease agreement dated 21st July  2017 between the Landlord/Applicant and the 1st Respondent/Tenant for a period of six (6) years from 1st  July 2017.  The same has no termination Clause in the currency of the lease.

5.  There is also annexed thereto a ruling delivered on 27th May 2020 in which the 1st Respondent/Tenant was the Applicant and the Landlord/Applicant herein was the Respondent.  The Reference was struck out on the basis that the lease agreement did not create a controlled tenancy and that this Tribunal declined jurisdiction to entertain the proceedings and the same were struck out.

6.  The present Reference is by subtenants/licencees of the Tenant/1st Respondent herein and there is no priority of contract between them and the Landlord/Applicant.

7.  In a replying affidavit sworn by one LAWRENCE MAGU on behalf of the sub-tenants, it is not denied that they are in the demised premises as licencees of the Tenant/1st Respondent.

8.  It is therein admitted that the 1st Respondent/Tenant was granted a lease of 6 years by the Landlord/Applicant which is the basis of the licences granted to the sub-tenants.

9.  The sub-tenants however contend that their licences are independent contracts.

10. The sub-tenants depose that they are aware that there has been a dispute between the Landlord and the 1st Respondent/Tenant but the said dispute does not concern them as they pay rent promptly.

11. The sub-tenants contend that on 9th March 2020, they became aware that the 1st and 2nd Respondents had conspired to evict them from the suit premises in the pretext of distress for rent by the 2nd Respondent against the 1st Respondent.  As a result their goods were proclaimed by the 3rd Respondent.

12. It is the sub-tenants contention that the Landlord is a necessary party in these proceedings and that they were not parties to BPRT NO. 609 of 2019 and the orders made in that matter should not apply to this case.

13. Having gone through the pleadings, what comes out clearly is that the honourable Tribunal’s jurisdiction to entertain the instant proceedings is in question.

14. In the case of owners of the motor vessel “LILIAN S” VS- CALTEX OIL (KENYA) LTD (1989) e KLR, the Court of Appeal at page 8-9/27had the following to say on jurisdiction:-

“ I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it.  Jurisdiction is everything.  Without it, a court has no power to make one more step.  Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.  A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”

15. Having considered the materials placed before me, I make the following findings:-

(i)   The lease entered into between the 1st and the 2nd Respondents being for 6 years and without a termination clause other than for breach of covenant ousts jurisdiction of the Tribunal under section 2 of Cap. 301, Laws of Kenya.

(ii)  Any licences granted to the subtenants are subject to the provisions of the said lease agreement and cannot create any protected tenancies under the Act.

(iii)  The ruling delivered on 27th May 2020 in Nairobi BPRT NO. 609 of 2019 is binding upon the subtenants as it is in respect of the same suit premises and subject matter i.e the lease.

(iv)  There is no privity of contract between the subtenants and the Landlord/Applicant to found a cause of action against the latter.  The sub-tenants are non suited against the Landlord.

(v) The licences granted to the sub-tenants are not independent contracts and can only be interpreted or read against the lease issued to the head tenant.

(vi)  The present Reference is an abuse of court process in view of the ruling in NAIROBI BPRT NO. 609 of 2019.

16. In the premises, I find and hold that the Landlord’s application has merit and the same is allowed with the result that:-

(a) The Tribunal has no jurisdiction to hear the Reference and the proceedings are therefore struck out with costs.

(b) The orders made in favour of the subtenants herein are hereby discharged.

(c) The Landlord’s costs are assessed at Kshs.25,000/- all inclusive.

(d) It is so ordered.

DATED, SIGNED & DELIVERED VIRTUALLY ON THE  19TH DAY OF JULY 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Miss Wairimu holding brief Mr. Kariuki for Tenant

No appearance for the Landlord/Respondents